J-A07005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BETH WILSON, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD WILSON,
Appellant No. 864 WDA 2014
Appeal from the Order April 28, 2014
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD No. 11-007162-002
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 31, 2015
Donald Wilson (Husband) appeals from the order dated April 28, 2014,
that directed that the Domestic Relations Office process a support order
consistent with Beth Wilson’s (Wife) and Husband’s Marriage Settlement
Agreement (MSA) and awarded to Wife $1,000 as a sanction.1 We affirm.
____________________________________________
1
The trial court’s order, dated April 28, 2014, provides:
AND NOW, to-wit, this 28th day of April, 2014, upon
presentation and consideration of the within Second Motion to
Enforce Settlement Agreement and for Sanctions, it is
hereby ORDERED, ADJUDGED, and DECREED that the prayer of
said Motion be and the same is hereby GRANTED.
1. Domestic Relations shall immediately process the PACSES
Order signed by the undersigned.
2. Plaintiff Beth Wilson is awarded $1,000 as sanctions, payable
to Paul J. Leventon & Associates, P.C., within twenty (20) days.
J-A07005-15
The trial court set forth the following factual and procedural
background of this matter, leading up to the instant appeal:
The parties were married on May 20, 1995. They are the
parents of three (3) minor children. Wife filed an eight (8) count
Complaint in Divorce on June 1, 2011. The matters of equitable
distribution and related claims proceeded in the normal course,
including the filing of inventories, engaging in discovery, and
attending conciliations. A pre-trial conference was scheduled on
November 26, 2013, during which the parties reached a
settlement of their economic claims.
The case history relevant to the within appeal commenced
at an October 1, 2013 conciliation, wherein this Court, by
Consent Interim Order, modified Husband's unallocated child
support and APL obligation. The support order was reduced to
eliminate the mortgage deviation Husband had been paying,
because the marital home had been sold.3 Husband had
previously filed a modification petition and the Order further
provided that his claim for retroactivity was “. .. preserved to
equitable distribution, and this Order shall be interim until
addressed at equitable distribution.”
3
The new APL and child support order was unallocated in
the amount of $3,100/month.
At the subsequent November 26, 2013 pre-trial
conference, the parties reached a global settlement of their
economic claims. They consented to an Order that date which
contained the terms of their settlement, and provided that Wife's
counsel was to prepare a marriage settlement agreement or final
equitable distribution order that would incorporate those terms.
The settlement provided, inter alia, that Wife would receive
$1,200/month in alimony from December 1, 2013 through
November 30, 2015. Thereafter, alimony would be reduced to
$800/month through November 30, 2017. No reference was
made to Husband's claim for a retroactive mortgage deviation
credit.
Wife's counsel subsequently prepared and forwarded to
Husband's counsel, proposed MSA and PACSES Orders. The
PACSES Order provided for unallocated support of
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$2,892/month, which included the $1,200/month in alimony per
the MSA. Husband's attorney requested some minor changes,
including the elimination of all child support language from the
MSA since the parties were also executing a PACSES Order. No
mention was made of Husband's mortgage deviation credit and
no objections were made regarding the amounts of child support
or alimony. Wife's counsel accommodated Husband's requests,
including the removal of the child support provisions from the
MSA. By e-mail of January 2, 2014, Husband's counsel
acknowledged receipt of the revised Orders and indicated that
his client would be executing them.
On January 17, 2014, Husband's attorney returned the
MSA, executed by his client. Husband's attorney advised,
however, that he was retaining the original PACSES Order, and
suggested that he and Wife's counsel process the Order through
screening together to “fully participate in the calculation of
arrears, particularly since there needs to be some credit for the
mortgage deviation that was contemplated at (the) last
conciliation.” Wife executed the MSA, and the same was entered
by this Court on February 3, 2014.
On April 11, 2014, Husband's counsel advised Wife's
counsel that Husband had unilaterally gone to the Domestic
Relations Office and processed the MSA, which resulted in a
PACSES Order being entered in the amount of the $1,200/month
in alimony. The new order eliminated child support in its
entirety, and scheduled a support conference for May 13, 2014.
Upon learning same, Wife, on April 15, 2014, presented her first
Petition to Enforce Settlement Agreement and for Sanctions.
This Court granted Wife’s petition and ordered that
Domestic Relations modify, on an interim basis, Husband’s
support to $2,892/month, unallocated, representing $1,200 for
alimony and $1,642 for child support. The support
conference/hearing was cancelled, and the parties were directed
to cooperate in processing a PACSES Order which conformed to
the parties’ MSA. This Court deferred Wife’s request for $2,000
as a sanction for Husband’s action in unilaterally processing an
order which was contrary to their agreement.
On April 16, 2014, in an effort to prepare and process a
PACSES Order consistent with the parties’ agreement, Wife’s
counsel consulted a Domestic Relation Officer. Wife’s counsel
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then prepared and submitted a PACSES Order to Husband’s
attorney. Receiving no response, Wife’s attorney presented a
Second Motion to Enforce Settlement Agreement on April 28,
2014. After argument on same, this Court granted the motion,
entered the PACSES Order, and directed that the order be
processed through the Domestic Relations Office. In addition,
Wife was awarded $1,000 in attorney fee sanctions.
Husband subsequently presented two (2) motions to this
Court on May 9, 2014: 1. Motion to Reconsider, arguing that
Husband had not waived his mortgage deviation credit; and 2.
Petition to Enforce Marital Settlement Agreement, arguing that
Wife was only entitled to a total of $1,200/month in combined
child and spousal support until the parties were divorced. This
Court found no merit to the motions, and denied both.
Trial Court Opinion, 7/25/14, at 1-5 (citations to the record omitted).
Husband then filed the appeal from the April 28, 2014 order that is
now before this Court. Husband also filed a concise statement of matters
complained of on appeal in response to the trial court’s order requesting
same. See Pa.R.A.P. 1925. In his brief, Husband sets forth the following
three issues:
A. Whether the trial court abused its discretion and erred
in disallowing Husband’s mortgage calculation retroactivity that
was preserved by the trial court’s order of October 4, 2013[?]
B. Whether the trial court abused its discretion and erred
in denying with prejudice [Husband’s] request for a modification
hearing in its May 9, 2014 order denying reconsideration[?]
C. Whether the trial court abused its discretion in
assessing unwarranted sanctions and counsel fees without
hearing in its April 28, 2014 order, and abused its discretion by
denying with prejudice Appellant’s request for a hearing on
sanction in the May 9, 2014 order denying reconsideration[?]
Husband’s brief at 4.
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Before we may consider Husband’s issues, we must address Wife’s
Motion to Quash [Husband’s] Notice of Appeal. Essentially, Wife asserts that
Husband’s issues arise from two court orders that were entered on May 9,
2014, and do not arise from the April 28, 2014 order. She further points out
that Husband did not file appeals from the two May 9, 2014 orders. One of
the May 9, 2014 orders denies Husband’s Motion for Reconsideration of the
April 28, 2014 order, wherein he requested that the April 28 th order be
amended to include a mortgage expense credit to Husband through PACSES
in the amount of $1,972 and to vacate the award of counsel fees to Wife.
The other May 9, 2014 order denied Husband’s request for a hearing in
connection with his Petition to Enforce Marital Settlement Agreement that
also relates back to the April 28th order. Although we agree with Wife that
Husband’s first two issues do not arise directly from the April 28 th order, we
recognize that the May 9th orders are interrelated with that previous order.
Therefore, we refuse to quash Husband’s appeal for the reasons stated by
Wife in her Motion to Quash.
Rather, we review this case in relation to the issues raised by Husband
and conclude that the court’s order should be affirmed. Having examined
the certified record, the briefs of the parties, the applicable law, and the
thorough opinion authored by the Honorable Susan Evashavik DiLucente of
the Court of Common Pleas of Allegheny County, dated July 25, 2014, we
conclude that Judge DiLucente’s well-reasoned opinion appropriately
disposes of the issues presented by Husband on appeal. We discern no
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J-A07005-15
abuse of discretion or error of law. Accordingly, we adopt Judge DiLucente’s
opinion as our own and affirm the April 28, 2014 order on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2015
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
BETH WILSON, No.: FD 11-007162-002
Plaintiff,
Superior Court No.: 864 WDA 2014
V.
DONALD WILSON, OPINION
Defendant.
BY:
Honorable Susan Evashavik DiLucente
5024 Family Law Center
440 Ross Street
Pittsburgh, PA 15219
COPIESTO:
Counsel for Plaintiff:
Paul J. Leventon, Esquire
Meri M. lannetti, Esquire
Suite # 1230, Grant Building
CD 310 Grant Street
('-!
Pittsburgh.PA 15219
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Counsel for Defendant:
_J L,-_,
(''1 Timothy G. Uhrich, Esquire
LL --- ; .. 909 The Allegheny Building
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-.:.-.--.) 429 Forbes Avenue
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FD 1 l -007 l 62-002
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
BETH WILSON, No.: FD 11-007162-002
Plaintiff, Superior Court No.: 864 WDA 2014
v.
DONALD WILSON,
Defendant.
OPINION
Evashavik Dilucente,J. July 25, 2014
The Defendant, DONALD WILSON ("Husband"), appeals from this Court's Order
of April 28, 2014. l This Order was entered on Plaintiff, BETH WILSON's (1'Wife"), Second
Motion to Enforce Settlement Agreement and for Sanctions. Said Order directed the
Domestic Relations Office to immediately process a support order {PACSES Order)
consistent with the parties Marriage Settlement Agreement ("MSA11)2, and awarded
Wife $1,000 as sanctions. For the reasons set forth below, this Court's Order was
appropriate and should be affirmed.
Background
The parties were married on May 20, 1995. They are the parents of three (3)
minor children. Wife filed an eight (8) count Complaint in Divorce on June 1, 2011.
The matters of equitable distribution and related claims proceeded in the normal
l This Order was issued in Motions Court. Hence, there is no record or transcript of the proceeding.
2 The parties actually signed a Final Equitable Distribution Order, but as Wife referred lo the same as a Marriage
Settlement Agreement in her motions. this Court has utilized that term for consistency.
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course, including the filing of inventories, engaging in discovery, and attending
conciliations. A pre-trial conference was scheduled on November 26, 2013, during
which the parties reached a settlement of their economic claims.
The case history relevant to the within appeal commenced at an October l.
2013 conciliation, wherein this Court, by Consent Interim Order, modified Husband's
unallocated child support and APL obligation. The support order was reduced to
eliminate the mortgage deviation Husband had been paying, because the marital
home had been sold.> Husband had previously filed a modification petition and the
Order further provided that his claim for retroactivity was 11
••• preserved to equitable
distribution, and this Order shall be interim until addressed at equitable distribution:"
(See, Order of 10/l /13).
At the subsequent November 26, 2013 pre-trial conference, the parties reached
a global settlement of their economic claims. They consented to an Order that date
which contained the terms of their settlement, and provided that Wife's counsel was
to prepare a marriage settlement agreement or final equitable distribution order that
would incorporate those terms. The settlement provided, inter alia, that Wife would
receive $1,200/month in alimony from December l. 20 l 3 through November 30, 2015.
Thereafter, alimony would be reduced to $800/month through November 30, 2017.
(See Order of 11 /26/13, ~ 2). No reference was made to Husband's claim for a
retroactive mortgage deviation credit.
3 The new APL and child supporf order was unallocated in the amount of $3, 100/month.
2
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Wife1s counsel subsequently prepared and forwarded to Husband's counsel.
proposed MSA and PACSES Orders. The PACSES Order provided for unallocated
support of $2,892/month, which included the $1,200/month in alimony per the MSA.
Husband's attorney requested some minor changes, including the elimination of all
child support language from the MSA since the parties were also executing a PACSES
Order. No mention was made of Husband's mortgage deviation credit and no
objections were made regarding the amounts of child support or alimony. Wife's
counsel accommodated Husband's requests, including the removal of the child
support provisions from the MSA. {See, Exhibit 11C" of Wife's April 15, 2014 Emergency
Motion to Enforce Settlement Agreement and for Sanctions). By e-mail of January 2,
2014, Husband's counsel acknowledged receipt of the revised Orders and indicated
that his client would be executing them.
On January 17, 2014, Husband's attorney returned the MSA, executed by his
client. Husband's attorney advised, however, that he was retaining the original
PACSES Order, and suggested that he and Wife's counsel process the Order through
screening together to "fully participate in the calculation of arrears, particularly since
there needs to be some credit for the mortgage deviation that was contemplated at
(the) last conciliation. ti (See, Exhibit II D" of Wife Is April 15, 2014 Emergency Motion to
Enforce Settlement Agreement and for Sanctions). Wife executed the MSA, and the
same was entered by this Court on February 3, 2014.
On April 11, 2014, Husband's counsel advised Wife's counsel that Husband had
unilaterally gone to the Domestic Relations Office and processed the MSA, which
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resulted in a PACSES Order being entered in the amount of the $1,200 /month in
alimony. The new order eliminated child support in its entirety, and scheduled a
support conference for May 13, 2014. (See, Exhibit "F" of Wife's April 15, 2013 Motion
to Enforce Settlement Agreement and for Sanctions). Upon learning same, Wife, on
April 15, 2014, presented her first Petition to Enforce Settlement Agreement and for
Sanctions.
This Court granted Wife's petition and ordered that Domestic Relations modify,
on an interim basis, Husband's support to $2.892/month, unallocated, representing
$1,200 for alimony and $1,642 for child support. The support conference/hearing was
cancelled, and the parties were directed to cooperate in processing a PACSES Order
which conformed to the parties' MSA. This Court deferred Wife's request for $2,000 as
a sanction for Husband's action in unilaterally processing an order which was contrary
to their agreement.
On April 16, 2014, in an effort to prepare and process a P ACSES Order consistent
with the parties' agreement. Wife's counsel consulted a Domestic Relations Officer.
Wife's counsel then prepared and submitted a PACSES Order to Husband's attorney.
Receiving no response, Wife's attorney presented a Second Motion to Enforce
Settlement Agreement on April 28, 2014. After argument on same, this Court granted
the motion, entered the PACSES Order, and directed that the Order be processed
through the Domestic Relations Office. In addition, Wife was awarded $1,000 in
attorney fee sanctions.
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Husband subsequently presented two (2) motions to this Court on May 9, 2014:
1 . Motion to Reconsider, arguing that Husband had not waived his mortgage
deviation credit; and, 2. Petition to Enforce Marital Settlement Agreement, arguing
that Wife was only entitled to a total of $1 ,200/month in combined child and spousal
support until the parties were divorced. This Court found no merit to the motions, and
denied both.
On May 27, 2014, Husband filed a Notice of Appeal from the Order of April 28,
2014, which is the subject of this Opinion. Pursuant to this Court's 1925(b} Order,
Husband filed his Concise Statement of Matters Complained of on Appeal. Husband
raises the following issues:
1. Whether the trial court abused its discretion and erred in disallowing
Appellant's (Husband's) mortgage calculation retroactivity that was
preserved by the trial court's order of October 4 [sic]. 2013.4
2. Whether the trial court abused its discretion and erred in denying with
prejudice Appellant's (Husband's) request for a modification hearing in its
May 9, 2014 order denying reconsideration.
3. Whether the trial court abused its discretion in assessing unwarranted
sanctions and counsel fees without hearing in its April 28, 2014 order, and
abused its discretion by denying with prejudice Appellant's (Husband's)
request for a hearing on sanctions in the May 9, 2014 order denying
reconsideration.
Analysis
Husband's first two issues concern his claim for a retroactive mortgage
deviation preserved pursuant to the October l, 2013 Interim Order. Husband relies on
4 The Order of Court regarding fhe issue of interim support was October l. 2013, not October 4, 2013.
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the provision of that Order which provided that "[ol] issues, including retroactivity,
preserved to equitable distribution as this order shall be interim until addressed at
equitable distribution." Following the entry of that Order, this Court scheduled the
matter for a hearing on equitable distribution and related _claims, and for a pre-trial
conference.
As stated, the parties reached a comprehensive settlement of their economic
claims at the pre-trial conference. The terms of the settlement were included in the
Order, which further directed Wife's counsel to prepare a final MSA incorporating the
same. Husband's mortgage credit claim was not an included term. As noted earlier,
Wife's Counsel prepared the MSA, and after some minor revisions requested by
Husband, none of which pertained to his mortgage deviation credit the parties
executed the same. Pursuant to the terms of the October 1, 2013 Order, Husband's
claim was extinguished at that time, as equitable distribution was concluded.
Moreover, provision XVII of the MSA specifically provided that "[a]II other claims
pending and/or previously raised by either party, but not specifically identified and
addressed herein are dismissed."
It is well-established that a consent order entered in an action in equity is not
considered oIeqcl determination made by the court, but is instead a binding
agreement between the parties. Osial v. Cook, 803 A.2d 209 (Pa. Super. 2002).
Likewise, judicial policies favor settlements, and it is not the role of the court to re-
evaluate such agreements. Greentree Cinemas, Inc. v. Hakim, 432 A.2d 1039 (Pa.
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Super. 1981 ). Rather, the Court will enforce such settlements in accordance with the
principles of contract law. Lobaugh v. Lobaugh, 753 A.2d 834 (Pa. Super. 2000).
The law in Pennsylvania is well settled that "[w]hen the words of an agreement
are clear and unambiguous, the intent of the parties is to be ascertained from the
language used in the agreement, ... (citations omitted} ... which will be given its
commonly accepted and plain meaning ... (citations omitted)." LJL Transp., Inc. v.
Pilot Air Freight Corp., 962 A.2d 639, 647-648 (Pa. 2009). "When construing
agreements involving clear and unambiguous terms, this Court need only examine
the writing itself to give effect to the parties understanding." (Citations omitted}. Osial,
supra. at 213.
ln the case sub judice, Husband argues that he is entitled to credit for a
mortgage deviation, as the same was somehow preserved. His argument is contrary
to the clear and unambiguous terms of the 10/ 1 I 13 and 11 /26/ 13 Consent Orders,
and the 2/3/14 MSA. The 10/1 /13 Interim Order only preserved the claim until the time
of equitable distribution. The 11 /26/13 Order, which set forth the equitable distribution
terms, did not include the claim. Finally, the MSA did not address the claim, and
clearly and unambiguously stated that "[a]II other claims pending and/or previously
raised by either party, but not specifically identified and addressed herein are
dismissed." (Provision XVII of the February 3, 2014 Final Equitable Distribution Order of
Court by Consent}. Hence, whether such matter was an issue, Husband has waived it.
Husband is attempting to resurrect the claim via the PACSES child support
order. That Order controls child support effective l 2/l /13 and provides for the
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collection of alimony, as established by the MSA. Husband's mortgage deviation
claim was extinguished on 11 /26/13. Husband cannot seek a retroactive modification
of an Order based upon an extinguished claim. As such, his argument has no merit.
As to the second mortgage deviation related issue, Husband contends that a
hearing should have been schedule to address this matter. For the reasons set forth
above, this issue is likewise meritless.
Finally, Husband contends that this Court erred in assessing counsel fees without
conducting a hearing. The authority to award counsel fees is by statute, as taxable
costs for dilatory, obdurate or vexatious conduct, and by the Court's own inherent
power to take appropriate action to ensure that the Court's business is conducted in
an orderly fashion. A trial court has great latitude and discretion with respect to an
award of attorney fees. Scalia v. Erie Insurance Exchange, 878 A.2d 114 (Pa. Super.
2005). "If there is support in the record for the trial court's findings of fact that the
conduct of the party was obdurate, vexatious or in bad faith," that decision will not
be disturbed on appeal. Id. at 116. Moreover, where the facts are undisputed, an
evidentiary hearing is not required prior to an award of counsel fees pursuant to 42
Pa. C.S.A. § 2503. Wood v. Geisenhemer-Shaulis, 827 A.2d 1204 (Pa. Super. 2003),
citing Kulp v. Hrivnak, 765 A.2d 796 (Pa. Super. 2000).
In the within matter, Husband argues that the imposition of attorney fees was
unwarranted. However, Husband ignores the fact that his unilateral actions caused
Wife to seek Court intervention on two occasions to enforce the MSA. It is undisputed
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that Husband, of his own volition and without his counsel's knowledge, went to the
Domestic Relations Office and obtained a PACSES order, which suspended his child
support. He then refused to cooperate and comply with this Court's Order to remedy
the same. All of Husband's actions and alleged defenses thereto are contained in
the pleadings and exhibits of record. There was no need for an evidentiary hearing.
Husband's conduct was obdurate, vexatious, and constituted bad faith.
Wife sought sanctions in the amount of $2,000 to compensate her for attorney
fees incurred as a result of Husband's unwarranted actions. However, this Court only
awarded her $1,000. To conduct a hearing on this issue would have constituted a
waste of judicial economy, further delay, and additional attorney fees and expenses.
For the reasons set forth herein, this Court's Order of April 28, 2014 should be
affirmed.
BY THE COURT:
Susan Evashavik Dilucente
9